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ARMY | DRB | CY1999 | 1999023671
Original file (1999023671.rtf) Auto-classification: Approved
PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: GD

2. Date of discharge (or REFRAD): 971113

3. Authority for separation:

         a. Regulation: Chapter 7, AR 135-178

          b. Reason: Misconduct
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            ARCOM(3)
a. Period entered for: 6 Years AAM(3)
b. Entry date: 920202 C/Ach
c. Age: 29 Years DOB: 620401
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 80 3. Highest grade achieved:
f. Length of Service: E5
5 Years 9 Months 12 Days

4. Performance evaluations:
See OMPF

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence: NONE

 Status Inclusive dates
         AWOL

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: Bar to Reenlistment (971005)
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         RA 800908 840907 HD
         USAR 840908 920201 HD



PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

         a. On 21 October 1997 the applicant’s unit commander initiated separation action, under the provisions of AR 135-178, chapter 7 as a result of the applicant having tested positive for cocaine use on a unit urinalysis test. The applicant consulted legal counsel and requested that her case be heard by an administrative separation board. The applicant was advised by letter that an administrative separation board would convene to hear her case on 9 November 1997. The unit commander subsequently recommended approval of the discharge action and forwarded it through command channels to the separation authority. On 21 October 1997, the separation authority directed that the applicant be discharged with a GD. On 13 November 1997, Orders 317-2, DA, HQ, 80 th Division (Institutional Training), Richmond, VA, discharged applicant from the USAR, with a GD.

         b. On 13 November 1997, the applicant was discharged with a GD. She was credited with 5 years, 9 months, and 12 days of service on the enlistment under review, and a total of 17 years, 3 months and 9 days total time in service.

         c. The applicant’s record reflects that she completed over 17 years of credible service; attained the rank of sergeant/E-5; and that she had earned a Good Conduct Medal, an Army Commendation Medal, three (3) Army Achievement Medals; three (3) Army Reserve Component Achievement Medals; the Armed Forces Reserve Medal. The applicant was processed for discharge for the wrongful use of cocaine. The evidence of record shows that the applicant requested that her case be heard by an administrative separation board which was scheduled; however, the record is silent on whether or not the board ever convened.

2. Legal/Regulatory Basis for Separation Action : Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation. The regulation provided that the separation authority could disapprove the commander’s recommendation for
discharge for misconduct and direct disposition by other means, disapprove the recommendation for separation for misconduct and direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should be separated for misconduct. When discharged under this provision, Army policy states that the characterization of service will normally be under other than honorable conditions. The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.
SECTION B-APPLICANT’S SUBMISSIONS

 1. Issue(s) of propriety and/or equity submitted by applicant or counsel.
As stated on applicant’s DD Form 293.
2. Exhibit(s) submitted:

         A-1: DD Form 293, dated 990302, with three (3) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE

PART IV - PREHEARING REVIEW (CONTINUED)



SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor ( ) Legal Advisor



 a. Medical prehearing comments (if applicable):

b. Legal prehearing comments (if applicable):
PART V - SUMMARY OF HEARING

SECTION A-Attendees and exhibits

1. Review/hearing information:

         a. Type requested:
         ( ) Records review ( X ) Hearing

         b. Type Held:
         ( )Records review ( X ) Hearing
         ( ) Tender Offer

         c. Review/hearing location and date: Washington D.C. on 5 April 1999.

         d. Appearance by:
         Applicant ( X ) Yes ( ) No
          Counsel ( ) Yes ( X ) No
         e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( ) Yes ( X ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibits submitted at hearing: Ten (10) additional documents.

PART VI - ISSUES AND FINDINGS

1. a. Applicant's issue(s) of propriety and/or equity:

          ( X )   Same as those listed on DD Form 293 and Part IV, Section A of this case report and directive.
         ( )     Revised issue(s) furnished in writing by applicant as follows:
         ( )     Additional issue(s) identified during review/hearing as follows:
         b. Request: ( X ) Recharacterization ( ) Change of Reason


2. Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on issues of propriety and/or equity:

a. Propriety:             The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

 (1) The issue is accepted. The Board concluded that the applicant’s discharge was improper because she had been denied the right to have her case heard by an administrative separation board. Further, after carefully examining the applicant’s record of service for the period of enlistment under review, the Board determined that the applicant's failure to perform in accordance with Army standards was mitigated by service of sufficient merit to warrant an upgrade of the discharge being reviewed. Accordingly, the Board voted to change the reason for separation to Secretarial Authority and the characterization of service to fully honorable.

 (2), (3) and (4) See Paragraph 3, below.


         b. Equity:       The applicant has not submitted an issue of equity and the ADRB has not otherwise relied upon an issue of equity to change the discharge. The major factors upon which the discharge was based are set forth in Parts III and IV of this decisional document.

3. Responses to items not addressed as decisional issues:

 Inasmuch as the Board voted to grant full relief, responses to remaining issues are neither required nor rendered.


PART VII - BOARD ACTION


SECTION A - Conclusions/Decisions/Vote

1.       Board conclusion(s):

         The discharge was:

          ( )      Proper.
         ( X )    Improper as to characterization. Change characterization to Honorable .
         ( X )    Improper as to reason. Change reason to Secretarial Authority .
                  under Chapter 4, AR 135-178 .
         ( )      Equitable.
         ( )      Inequitable as to characterization. Change characterization to                                .
         ( )      Inequitable as to reason. Change reason to                       
                  under                                  .
         ( )      Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to                      under                          .
2. Voting record: Change No Change
         Reason 5 0
Characterization 5 0

         The names and votes of the members of the Board are recorded in Part IX of this document and can be obtained by writing to the address below. The request must contain the CASE NO. located in the upper right corner of this document.

Department of the Army Review Boards Agency
ATTN: Promulgation Team
1941 Jefferson Davis Highway, 2nd Floor
Arlington, VA 22202-4508



3. Minority views: NONE

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

                                 
MR. ADRIANCE
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A – DIRECTIVE

TO: ARBA Support Division-St Louis Date: 9 April 1999.

The Army Discharge Review Board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part I directs that the ARBA Support Division-St Louis correct all Department of the Army records to reflect the following directed changes:

 ( X )   Change the characterization of the discharge to Honorable.
( X )   Change the reason and authority for discharge to
         Secretarial Authority under Chapter 4, AR 135-178.
 ( X )   Other (see remarks below).

Remarks: Change the applicant’s RE code to 1 .


SECTION B - CERTIFICATION
Approval Authority:


THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




SUZANNE WALKER
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge          C - Other
B - Material submitted by applicant

INDEX RECORD:

 AR Number: 1999023671 INDEX NUMBERS: A0142
Date of Review: 990405 A0132
Character of Service: GD A9218
Date of Discharge: 971113
Authority: AR 135-178 C7
Reason: A6730
Results of Board Action/
Vote/Affirmation: HD 5-0 A



PART IX - VOTING RECORD

 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR
1.      Mbr  X     X           
2.      Mbr  X     X           
3.      Mbr  X     X           
4.      Mbr  X     X           
5.      Mbr  X     X           

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